Pope v. State

Conviction for unlawfully taking fish by the use of dynamite; punishment, a fine of $25.00 and thirty days in the county jail.

The trial term of the court below, as appears from the caption to the transcript, began on the 4th of February 1929, and ended on the 4th of May of the same year. It is provided in Art. 830 Cow. C. P., that on appeal in a misdemeanor case the accused may enter into a recognizance during the trial term, but if he fails to do so during such term, he must make an appeal bond to the sheriff, which bond shall be approved by the sheriff or the county judge. We find nowhere any provision for the giving of a bail bond for appeal during the term at which the case is tried, nor for a recognizance to be made by the accused after the expiration of such term. There appears in this record a bond approved by the sheriff and the county judge of date March 22, 1929, which was manifestly made during the trial term of the lower court. This gives our court no jurisdiction. Stephenson v. State, 84 Tex.Crim. Rep.; Thurman v. State, 81 Tex.Crim. Rep.; Mathis v. State,81 Tex. Crim. 167.

Attention is called also to the fact that although there is nothing in the transcript which shows that the case did not originate in the county court, there is in this record no information filed by the county attorney as required by Art. 414, C. C. P. The complaint appears to have been taken before a justice of the peace in September 1928, and it is possible that this may have been a de novo trial following a conviction in the justice court from which an appeal was taken. In such case there would be no need for the filing of an information in the county court, but the transcript before us makes no showing in regard to any proceedings on appeal from an inferior court, and we are compelled to treat the record as presenting a case tried upon a complaint which was filed originally in the county court.

Being without jurisdiction, the appeal is dismissed.

Dismissed.

ON MOTION TO REINSTATE APPEAL.